Kane Milham v D n R Henderson

[2020] FWC 3257

[2020] FWC 3257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kane Milham
v
D n R Henderson
(U2020/7410)

COMMISSIONER BISSETT MELBOURNE, 22 JUNE 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 29 May 2020, Mr Kane Milham made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Mr Milham did not pay the required fee or file a completed fee waiver form.

[3] Later on 29 May 2020, the Commission attempted to contact Mr Milham on his nominated telephone number to discuss payment however the call could not be connected at that time.

[4] Later that day, the Commission sent email correspondence to Mr Milham’s nominated email address attaching a fee waiver form and advising that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with the application. The correspondence also warned that if he did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. This was followed by an SMS notification sent to Mr Milham’s nominated telephone number which sought a return call to discuss payment. The Commission also sent an SMS notification to Mr Milham’s nominated telephone number which sought a return call to discuss payment.

[5] On 1 June 2020 Mr Milham returned the Commission’s call. He was advised that that the Commission requires payment or a completed fee waiver form if he wishes to proceed with the application. The Commission informed Mr Milham that if he wanted to file a fee waiver form he would need to do that as soon as possible. Mr Milham did not make payment or file a completed fee waiver form.

[6] On 10 June 2020 the Commission made a final attempt to contact Mr Milham on his nominated telephone number to discuss payment. Mr Milham did not answer the call. A voicemail message was left advising him that payment of the required fee was still outstanding and to contact the Commission.

[7] Later that day, Mr Milham telephoned the Commission. He said he wanted to “leave” the application. The Commission advised Mr Milham to do this he would need to withdraw the application. Mr Milham said he would think about it.

[8] To date Mr Milham has not paid the required fee nor has he filed a completed fee waiver form. He has not otherwise contacted the Commission to advise that he wants to withdraw his application.

[9] Section 395 of the FW Act, which deals with application fees, provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[10] Section 587(1) of the FW Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[11] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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